INVESTIGATION INTO CORRUPTION RISKS INVOLVED IN LOBBYING ICAC REPORT NOVEMBER 2010 INVESTIGATION INTO CORRUPTION RISKS INVOLVED IN LOBBYING ICAC REPORT NOVEMBER 2010 This publication is available on the Commission’s website www.icac.nsw.gov.au and is available in other formats for the vision-impaired upon request. Please advise of format needed, for example large print or as an ASCII file. ISBN 978 1 921688 13 3 © November 2010 – Copyright in this work is held by the Independent Commission Against Corruption. Division 3 of the Copyright Act 1968 (Cwlth) recognises that limited further use of this material can occur for the purposes of “fair dealing”, for example study, research or criticism, etc. However if you wish to make use of this material other than as permitted by the Copyright Act, please write to the Commission at GPO Box 500 Sydney NSW 2001. Level 21, 133 Castlereagh Street Sydney, NSW, Australia 2000 Postal Address: GPO Box 500, Sydney, NSW, Australia 2001 T: 02 8281 5999 1800 463 909 (toll free for callers outside metropolitan Sydney) TTY: 02 8281 5773 (for hearing-impaired callers only) F: 02 9264 5364 E: [email protected] www.icac.nsw.gov.au Business Hours: 9.00 am - 5.00 pm Monday to Friday © ICAC The Hon Amanda Fazio MLC The Hon Richard Torbay MP President Speaker Legislative Council Legislative Assembly Parliament House Parliament House Sydney NSW 2000 Sydney NSW 2000 Madam President Mr Speaker In accordance with section 74 of the Independent Commission Against Corruption Act 1988 I am pleased to present the Commission’s report on its investigation into the corruption risks involved in the lobbying of public officials and public authorities in New South Wales. The Commission has made a number of recommendations for a new regulatory scheme designed to address relevant corruption risks and improve transparency and integrity. Pursuant to section 78(2) of the Independent Commission Against Corruption Act 1988 the Commission recommends that this report be made public forthwith. This recommendation allows either presiding officer of the Houses of Parliament to make the report public, whether or not Parliament is in session. Yours faithfully The Hon David Ipp AO QC Commissioner © ICAC Contents Glossary 6 Chapter 4: Lobbying regulation in other jurisdictions 26 Executive summary 7 United States (US) 26 List of recommendations 9 United Kingdom (UK) 26 Canada 26 List of public inquiry witnesses 12 Australia 27 Chapter 1: The investigation 14 Chapter 5: The current NSW regulatory Why we investigated 14 system 29 How we conducted the investigation 15 Overview 29 Principles underlying our recommendations 16 NSW Government Lobbyist Code of Conduct 29 NSW Department of Planning’s Code of Practice 31 Chapter 2: Corruption – perceptions and risks 17 Premier’s memoranda 32 Perceptions of corruption 17 Other codes of conduct 33 Corruption risks 18 Chapter 6: Regulating lobbying 35 Addressing a dilemma 20 Better regulation principles 35 Chapter 3: Lobbyists and their work 22 Proposals for regulating lobbying in NSW 35 Who lobby? 22 Retention of a register 36 Professional profiles and qualifications 22 Objections to lobbying regulation 36 Why lobby? 23 Compliance 39 What lobbyists do 23 Providing advice 24 Lobbying government 24 4 ICAC REPORT Investigation into corruption risks involved in lobbying Chapter 7: Recording and accessing Chapter 10: Addressing related corruption lobbying communications 41 risks 58 Communication protocols 41 Gifts and benefits 58 Recordkeeping 42 Post-separation employment 58 GIPA Act 43 Exploitation of privileged access 60 Payment of success fees 60 Chapter 8: Codes of conduct 46 Code of conduct for lobbyists 46 Chapter 11: Local government and lobbying 61 Code of conduct for government representatives 47 Why lobbying local government is different 61 Chapter 9: Formulating a register 48 Local government lobbyists 62 The purpose of a register 48 Changing the value of land 62 Definitions for a register 48 Covert relationships 63 Which lobbyists would have to register? 51 What form does lobbying take at local government level? 63 Other lobbyists who must register 51 Regulation of lobbying of local government 63 Which lobbyists would not have to register? 52 The local government lobbyists register issue 65 Operation and contents of a register 52 Information not sought from registrants 53 Bibliography 66 Proof of integrity 54 Statutory manager for register 55 Reactions to an expanded online register 55 Expansion of the register 55 ICAC REPORT Investigation into corruption risks involved in lobbying 5 Glossary Communication Lobbyist or Lobbying Entity engaged in Lobbying Activity, the identity of the government department, agency or A communication by means of telephone, electronic mail, ministry lobbied, the name of any Senior Government written words and face-to-face meetings. Representative lobbied, and, in the case of Third Party Lobbyists, the name of the client or clients for whom Government Representative the lobbying occurred and the name of any entity related A minister, parliamentary secretary, ministerial staff to the client the interests of which did derive or would member or a person employed, contracted or engaged have derived a benefit from a successful outcome of the in a public sector agency (a division of the government lobbying. service in section 4A of the Public Sector Employment and Management Act 2002), other than staff employed Senior Government Representative under section 33 of the Public Sector Employment and A minister, parliamentary secretary, ministerial staff Management Act 2002. member or division head referred to in Schedule 1 of the Public Sector Employment and Management Act 2002, and In-house Lobbyist members of the senior executive service, as defined in the Those who as part of their employment with an Public Sector Employment and Management Act 2002. organisation engage in lobbying on behalf of that organisation. Third Party Lobbyist A person, body corporate, unincorporated association, Lobbying Activity partnership, trust or firm who or which is engaged to A communication with a Government Representative in undertake a Lobbying Activity for a third party client in an effort to influence government decision-making. The return for payment or the promise of payment for that extended definition proposed by the Commission is at lobbying. page 49. Comprehensive definitions of most of these terms are included in Chapter 9 of this report. Lobbying Entity A body corporate, unincorporated association, partnership, trust, firm or religious or charitable organisation that engages in a Lobbying Activity on its own behalf. Lobbyists Register A two-panel register proposed by the Independent Commission Against Corruption (one for Third Party Lobbyists and one for Lobbying Entities) that requires disclosure of the month and year in which a Third Party 6 ICAC REPORT Investigation into corruption risks involved in lobbying Executive summary This investigation differs from the usual investigation The principal features of a new lobbying regulatory scheme conducted by the Independent Commission Against proposed by the Commission are as follows: Corruption (“the Commission”) in that it was not concerned with whether any particular individual had • establish a public sector meeting protocol for engaged in corrupt conduct. the conduct of meetings with lobbyists, for the minuting of these meetings and relevant telephone Rather, the investigation examined the corruption risks calls, and for the retention of records of Lobbying involved in the lobbying of public authorities and officials. Activity in accordance with the State Records Act Its aim was to examine whether such relationships may 1998 (see Recommendations 2 and 3, and Chapter allow, encourage or cause the occurrence of corrupt 7) conduct or conduct connected with corrupt conduct, • amend the Government Information (Public Access) and to identify whether any laws governing any NSW Act 2009 (“the GIPA Act”) to include records of public authority or public official should be changed. The Lobbying Activity in the definition of “open access Commission also examined whether any work methods, information”, for which there is no overriding practices or procedures of any NSW public authority public interest against disclosure. Under the or public official could allow, encourage or cause the GIPA Act, open access information held by an occurrence of corrupt conduct, and, if so, what changes agency must be made publicly available, including should be made. on a website maintained by the agency (see The Commission found that lobbying attracts widespread Recommendation 4, and Chapter 7) community perceptions of corruption, and involves a • expand the class of lobbyists that are to be number of corruption risks. However, there was much regulated to include all Third Party Lobbyists and evidence that demonstrated that, in general, professional Lobbying Entities (see Chapter 9) lobbyists act ethically, and that lobbying, when done well, can enhance rather than detract from good • impose statutory regulation of Third Party decision-making by public officials. Lobbyists and Lobbying Entities, including a mandatory prescribed code of conduct (see A lack of transparency in the current lobbying regulatory Recommendations 1 and 6, and Chapters 6 and 8) system in NSW is a major corruption risk, and contributes significantly to public distrust. Those who lobby may • require Third Party Lobbyists and Lobbying be entitled to private communications